## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before CAMPANELLA, SALUSSOLIA, and FLEMING Appellate Military Judges

UNITED STATES, Appellee

v. Specialist VINCENT P. DEGREGORI III United States Army, Appellant

ARMY 20150581

Headquarters, Fort Drum S. Charles Neill, Military Judge
Colonel Steven C. Henricks, Staff Judge Advocate

For Appellant: Colone l Mary J. Bradley, JA; Captain Heather L. Tregle, JA; Captain Matthew L. Jalandoni, JA (on brief); Major Christopher D. Coleman, JA; Captain Matthew L. Jalandoni, JA (o n reply brief); Lieutenant Co lonel Tiffany M. Chapman, JA; Lieutenant Colonel Chri stopher D. Carrier, JA; Capt ain Timothy G. Burroughs, JA (on brief following rema nd); Lieutenant Co lonel Christopher D. Carrier, JA; Captain Timothy G. Burr oughs, JA (on reply br ief following remand).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colone l A.G. Courie III, JA; Major Michael E. Korte, JA; Captain Au stin L. Fenwick, JA (on brief); Colonel Tania M. Martin, JA; Lieute nant Colonel Eric K. Stafford, JA; Major Michael E. Korte, JA; Captain Austin L. Fenwick, JA (on brief following remand).

30 November 2017

-------------------------------------------------------------- SUMMARY DISPOSITION ON FURTHER REVIEW

--------------------------------------------------------------

CAMPANELLA, Senior Judge:

The finding of guilty of Specification 2, The Charge is reversed in light of United States v. Hills, 75 M.J. 350 (C.A .A.F. 2016) and United States v. Hukill , 76 M.J. 219 (C.A.A.F. 2017 ); the sentence is set aside; and a rehearing is authorized.

A military judge sitting as a general court-martial convicted appellant, contrary to his plea, of one specification of sexual assault, in violation of Article 120 Uniform Code of Military Justice, 10 U.S.C. § 92 0 (2012). The convening authority approved th e adjudged sentence of a dishon orable discharge, confinement for five years, and reduction to the grade of E-1.DEGREGORI—ARMY 20150581

2 On 10 January 2017, th is court affirmed the findings and sentence in this case. United States v. Degregori , ARMY 20150581, 2017 CCA LEXIS 19 (Army Ct. Crim. App. 10 Jan. 2017) (sum. disp.). On 26 July 2017, the Co urt of Appeals for the Armed Forces (CAAF) set aside this court’ s decision and remanded the case for a
new review under Article 66, UCMJ, in light of United States v. Hukill , 76 M.J. 219 (C.A.A.F. 2017). United States v. Degregori , 76 M.J. 439 (C.A.A.F. 2017).

BACKGROUND

The government charged appellant with two Article 120, UCMJ, specifications involvi ng two different soldiers, Private First Class (PFC) SN and PFC JE. The military judge convicted appe llant of the specification involving PFC JE, which alleged sexual assa ult, but found appellant not guilty of the specification involving PFC SN, whic h alleged abusive sexu al contact.

The government asked the military judge to consider, under Military Rule of Evidence [hereinafter Mil. R. Evid.] 413, evidence that appellant committed abusive
sexual contact on PFC SN as propensity evidence that he sexually assaulted PFC JE. The defense objected, but the military judge ruled in favor of th e government. The military judge f ound PFC SN was credible and that the evidence of abusive sexual contact was strong. He al so found the probati ve value very hi gh because of the
similarities between the tw o charged offenses.

While initially sketchy, PFC JE’s recall of the even ing enlarged over time. The government entere d into evid ence testimony of an exch ange between appellant and an acquaintance on sta ff duty occurring after the incident wherein appellant
stated he was concerned he would be accused of rape. The government also entered into evidence an exchange of text messag es wherein appellant admitted having sex with PFC JE; appellant, howev er, did not indicate the se x was nonconsen sual. Trial Counsel compared and contrast ed the similarities between the incidents with PFC JE and PFC SN throughout his closi ng argument.

With regard to the specification of which appellant was found guilty, the
defense raised consent as a defense and asserted PFC JE had a motive to lie. There
was also evidence of public displays of affection between appellant and PFC JE.

Appellant now cites Hukill to assert the mi litary judge abused his discretion by granting the government’s motion to use charged offenses for Mil. R. Evid. 413

purposes.

LAW AND DISCUSSION

After appellant's court-mar tial, our superior court held it is constitutional error for a military judge to give an inst ruction to a panel unde r Mil. R. Evid. 413DEGREGORI—ARMY 20150581

3 that permits evidence of ch arged sexual misconduct to be considered as propensity
evidence when consid ering other charged sexual misconduct. United States v. Hills, 75 M.J. 350, 352 (C.A.A.F . 2016). Recently, in Hukill , the Court of Appeals for the Armed Forces explained the Hills reasoning also applies to trials by military judge
alone. Hukill , 76 M.J. at 220. In that case, the military judge allowed the charged sexual offenses as propensity evidence used against each char ged offense for which appellant was convicted. Id

.

If instructional error is found when there are cons titutional dimensions at play, this court tests for prejudice under the standard of harmless beyond a
reasonable doubt. United States v. Wolford , 62 M.J. 418, 420 (C .A.A.F. 2006). The inquiry for determining whethe r constitutional error is ha rmless beyond a reasonable doubt is whether, beyond a re asonable doubt, the error di d not contribute to the
defendant's convicti on or sentence. United States v. Kreutzer , 61 M.J. 293, 298 (C.A.A.F. 2005). An error is not harmless beyond a reasonable doubt when there is
a reasonable possibility the error comp lained of might have contributed to the
conviction. United States v. Moran , 65 M.J. 178, 187 (C.A.A.F. 2007); United
States v. Chandler , 74 M.J. 674, 685 (Arm y Ct. Crim. App. 2015).

Having reviewed the evidence in light of the military judge’ s ruling, even if we believe the evidence factually sufficient to support appellant’ s finding of guilty
to sexual assault of PFC JE, we are not convinced beyond a reasonable doubt that
the Mil. R. Evid. 413 error di d not contribute to th at finding of guilt y. Accordingly, Specification 2 of The Charge cannot st and. We grant relief in our decretal paragraph.

CONCLUSION

The finding of guilty and sentence are SE T ASIDE. A retrial is authorized.
The case is returned to the same or a different convening authority.

Judge SALUSSOLIA and Judge FLEMING concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: